Revised 26 November 2003

Vietnamese Court Reform: Constancy

and Change in the Contemporary Period

Paper presented at

Mapping Vietnam’s Legal Culture:

Where is Vietnam going to?

Conference in Victoria, B.C. Canada
March 27-29, 2003

Dr. Pip Nicholson

Associate Director (Vietnam), Asian Law Centre,

The University of Melbourne, Australia.

This is a draft paper and not for circulation.

Comments are welcomed at

I thank Nguyen Hien Quan and Kerstin Steiner, both doctoral candidates at the University of Melbourne’s School of Law and Quang Chuc Tran, Masters student at the University of Melbourne’s School of Law for research assistance with this paper.

Abbreviations

LOOPC

/

Law on the Organization of People’s Courts

OOJJPC

/

Ordinance on Judges and Jurors of the People’s Courts

SCNA

/

Standing Committee of the National Assembly

SPC

/

Supreme People’s Court

Introduction

In 2002 the Vietnam Communist party (VCP), the National Assembly and various other state institutions passed policies and laws to reform the Vietnamese court system.[1] At first blush these initiatives reflect a wide-ranging and ambitious reform agenda. Changes include: increasing the role of the Supreme People’s Court (toa annhan dan toi cao) in the management and budgets of courts; empowering the Chief Justice to appoint, remove or dismiss judges at the provincial and district level (albeit in consultation with various representative bodies); setting higher qualifications for judges; enabling courts to dismiss people’s assessors; and explicitly recognising the need to give priority to court-based information technology reforms. On greater analysis, however, the apparently radical nature of these reforms is at least partly undercut by pre-existing work practices and the details of implementing legislation

This paper argues that Vietnamese court reform is dynamic, but also challenged by the existing practice and culture within courts. In particular, taking the reforms relating to the appointment and dismissal of judges and peoples assessors and the role and function of courts as examples, the paper suggests that while some of the reforms appear radical, their effects are moderated by existing practices. More particularly, it will be suggested that although the relevant laws map a significantly more self-managed court system, it cannot be described as independent. The on-going application of prior practices affecting the appointment of court staff undermines the radicalism of the appointment reforms. Therefore while courts have been actively included in Vietnam’s legal reform process, they remain very firmly within the existing stable of Party-led and Party-dominated institutions.[2]

Paradoxically it will be demonstrated that while the functions and responsibilities of courts have remained largely unchanged over the last twenty years, the implementation of these functions has changed. An analysis of the Supreme People’s Court’s promulgation of legal instruments, advice to lower courts and propagandist functions demonstrates that the court has been much more active in the recent past.

The paper commences with a brief introduction of the northern Vietnamese court system between 1945 and 1976 (part one) and a summary of the criticisms leading up to the reform of the national court system in 2002 (part two). The reforms are introduced (part three) and the particular reforms relating to the appointment and dismissal of its personnel and the work of the courts are analysed (part four). In conclusion, the paper notes that the court system is increasingly self-managed, while at the same time the Party’s leadership role remains.

It is not my intention to pass judgment on whether legal institutions in transitional nations should follow the Western-inspired liberal model of the rule of law.[3] It is clear that Vietnam, as a socialist state, does not aspire to give effect to the Western liberal democratic ideal.[4] Instead, the aim of the paper is to explore how Vietnamese court reform affects the shape and role of courts in contemporary Vietnam

  1. The Socialist Vietnamese Courts Introduced

Shortly after the Declaration of Independence by Ho Chi Minh in 1946, the revolutionary government introduced a court system in the north of the country.[5] Established during a period of war and with the country divided in military zones, this was a period of ad hoc court administration (Nicholson 2000: Chapter 4). In these early years of the new regime, the main policy priority for the courts was the eradication of political dissidents and the implementation of particular state policies. An example of the latter was the establishment of Special Courts (toa an dac biet) for the implementation of the Land Reform Campaign (Nicholson 2000: 82 – 86, White 1981). Generally speaking, courts throughout the period 1946 to 1959 were tools of the state established on an ad hoc basis and staffed by revolutionaries (Nicholson 2000, Fall 1956).

There was very little central oversight of these early socialist courts. Attempts at centralising courts were frustrated by the war (Nicholson 2000: Chap. 3). For example, although theoretically a central system of appeals existed, it was not possible to give effect to it. The land reform campaign also illustrates the frustration of the new regime in establishing and implementing a radical decision-making tribunal. The Vietnamese land reforms of 1953 – 1956 had as their aim the redistribution of property from elites to the peasant and working classes and the political indoctrination of the community (White 1981). However, the arbitrary and brutal nature of the Special Courts ultimately required the party to abandon the policy, issue an apology and oversee the resignation of the Communist Party Secretary, Truong Chinh (White 1957, Gittenger 1977, Burchett 1955).

In the early period, judges (tham phan) were theoretically appointed to office in the primary courts (now known as district courts) by the Ministry of Justice. In the case of secondary courts (now known as provincial courts), the President held the power to appoint.[6] ‘Political dignity and professional skill’ were the criteria upon which appointments were based (Barrister A, 1999). Although the legislation stipulated that judges were to have law degrees and have completed judge-specific training,[7] these requirements were not enforced, with the State introducing temporary provisions requiring only that judges have finished school or worked as a clerk or middle bureaucrat.[8]

People’s assessors (hoi tham nhan dan more recently translated as jurors) were drawn from a list made up in the first instance by the Administrative Committee (uy ban hanh chinh) of the relevant level of government. Over time this duty was transferred to the War Administration Committees (uy ban khang chien hanh chinh). The revolutionary government’s introduction of people’s assessors to courts was stressed as a reform evidencing the government’s commitment to popular and not elite justice (Nicholson 2000: 94). In other words, people’s assessors were seen as important to the popularising of courts and a sign of the essential differences between colonial and post-colonial justice systems.

From 1959 Vietnamese legal officials talk of a central court system (Nicholson 2000: Chap. 5). Closely modelled on its Soviet parent, the state introduced a three-tier court hierarchy in 1959 and laws to regulate the newly formalised institution. At this time Military Courts and Civilian courts were officially separated and it became more possible to exercise appeal and review rights. There is also evidence of an emerging legal debate on the meaning of legal terms and the role of law in the Democratic Republic (Sidel 1997 (2)).

Part of the package of court-related reforms introduced in 1959 included that judges would no longer be appointed to office, but instead most would be elected (Nicholson 2000: 141). Under the changes the National Assembly was to elect the Chief Judge of the Supreme People’s Court (SPC) and its Standing Committee appointed the remainder of the SPC judges. Within local (a reference to both provincial and district institutions) courts the People’s Councils were to elect all judges to the relevant level of court. For example, Provincial People’s Councils elected judges to the Provincial People’s Courts within their area. Commentary suggests that the quality of judges varied widely (Le Kim Que 1961: 14) and that the Supreme People’s Court tried to educate local councils in how to appoint appropriate personnel (Le Kim Que 1961: 14).

People’s assessors were also elected to office after the 1959 amendments, except for Supreme People’s Court’s people’s assessors who were appointed by the Standing Committee of the National Assembly.[9] Given the same power as judges to determine disputes, the role of people’s assessors was widely circulated with the official paper Nhan Dan reporting that ‘people’s jurymen would now have the same power as people’s justices’ (Nhan Dan 18 May 1961:4).

Despite the many reforms, the courts did not effectively come within central control. War escalated in Vietnam after 1959 and one of its lasting effects on the courts was regionalism. For example, it was very difficult to give effect to the educational requirement of judges and to institute judge-specific education (Nicholson 2000: 152 - 155). At this time, most judges were lucky to receive on-the-spot training by educators from the USSR or by those trained in train-the-trainer programs in the USSR (Nicholson 2000: 203 – 205). The major focus of judicial training lay in political and socialist moral indoctrination (Nicholson 2000: 98). Legal training, as it is known today in Vietnam, was entirely foreign.

After unification of Vietnam in 1976, the existing court system of the DRVN was exported to the old Republic of Vietnam.[10] Following the introduction of the doi moi or renovation policies in 1986 the state passed additional laws with national application in the early 1990s to clarify and modernise the role of the courts (Nicholson 2001, Quinn 2003). It is beyond the purview of this article to trace those changes in great detail, although the elements of the 1990s legislation are set out when it is compared with the recent reforms in part three of this paper. Perhaps the best way of describing the changes of the early nineties is to see them as introducing new courts, particularly those needed by a socialist-oriented market economy (kinh te thi truong theo dinh xa hoi chu nghia). Thus the Economic Court and Administrative Courts were introduced in 1994 and 1996 respectively, but no constitutional court was introduced.

  1. Calls for Reform

Vietnamese criticisms of courts have not been confined to the contemporary period (Nicholson 2000: 53-54, Sidel 1997(2), Boudarel 1990). In particular, there were outspoken criticisms of the Special Courts during the land reform era and during the Nhan Van (Humanity) Gia Pham (Beautiful Literary Work/Masterpiece) affairs of 1956 (Boudarel 1990).[11]

In the last decade criticisms of the Vietnamese court system have been widespread. The international investment community is a loud critic,[12] as are local lawyers.[13] The Party has noted the shortcomings of the existing court system.[14] The Chief Justice of the Supreme People’s Court has also commented on the need for reform.[15] Donors have been anxious to assist with the establishment of an ‘independent’ court system as evidenced by the number of programs oriented towards strengthening the independence and enhancing the capacity of the court system.[16]

It is not only local and international lawyers, jurists and donors who have commented on the need for court reform. The local press have reported on some Vietnamese court corruption scandals (Nicholson 2002), thereby publicising the issue, although usually positioning corrupt behaviour as aberrant rather than widespread.[17]

Criticisms of the courts have focussed on their ‘lack of independence’, the corruption of court personnel, the lack of technical competence of judges and people’s assessors, the lack of infrastructure and technology within courts, the need for detailed legislation to give effect to general legal reforms and the lack of a uniform management structure for courts (Resolution 8, 2002). As we will see, the 2002 reforms attempt to respond to most of these criticisms.

3 - Court Reform in the New Millenium

The phrase the ‘new millenium’ has been much overused: all too often, in the Australian context, ‘millenium hype’ overstates rather mundane changes. However, in the Vietnamese context, both the VCP and state institutions have produced documents potentially heralding wide-ranging reforms. The court ‘reform package’ commenced with changes to the 1992 constitution made in late 2001 with effect from January 2002. In the same month, the VCP issued Resolution No 8of the Political Bureau On Forthcoming Principal Judiciary Tasks (Resolution 8). In April 2002 the President passed the new Law on the Organisation of Peoples Courts and in October of the same year the Ordinance on Judges and Peoples Assessors came into effect. Taken together the Party restated its leading role generally (Sidel 2002: 74) and with respect to courts (Resolution No. 8), and at the same time stipulated that courts ought to judge cases independently (Resolution No. 8, II B (1) (c)).[18]

Taking each of these propositions in turn, it is first important generally to note the restatement of the Party’s leading role in policy development and state building. As Mark Sidel explains in his excellent analysis of the 2001 constitutional reforms, the CPV has not abandoned the 1992 formulation of its role set out in Article 4 of the Constitution (Sidel 2002: 74):

The Communist Party of Vietnam, the vanguard of the Vietnamese working class, the faithful representative of the rights and interests of the working class, the toiling people, and the whole nation, acting upon the Marxist-Leninist doctrine and Ho Chi Minh’s thought, is the force leading the state and society.

All Party organizations operate within the framework of the Constitution and the law.

[Author’s italics]

In short, although the reforms set out below are significant they have been introduced while the Party remains the leading force.

The significance of the Party issuing a policy statement on law reform should not be overlooked. Issued in 2002, Resolution 8 is the first high-level Party statement on legal reform since the introduction of doi-moi. While not a blue print for court reform (Nguyen Chi Dzung 2003), at the very least, it demonstrates a commitment by the Party-State to evaluate the position of law and identify practical steps to remedy existing weaknesses within the legal system generally and the court system in particular.

The tension between the Party leading the state and the courts being independent is very much in evidence in the Party’s Resolution No. 8. Part Two of the policy paper sets out ‘Steering Opinions’ (Quan diem chi dao) and ‘Several Forthcoming Important Judicial Responsibilities’ (Mot so nhiem vu trong tam cua cong tac tu phap trong thoi gian toi). In the general section entitled ‘Steering Opinions’ the courts are clearly charged to follow:

the orientations and policies of the Party, pursue and effectively serve the political tasks in each period, ensure the united power of the State […] securely keep the nature of our state which is the socialist state under the rule of laws of the people, from the people and for the people.

On the next page, in the context of a discussion of how to enhance the role and capacity of judges the Resolution provides that ‘judges and assessors shall be independent and only obey the law’.

In effect, Resolution No 8, while not confined to an analysis of courts, concurrently charges the courts only to obey the law and to give effect to the orientations and policies of the Party and serve its political ends. To a Western commentator these are inconsistent objectives. A contextual interpretation of these maxims suggests that either VCP policy will be located in laws (the ideal situation) or, where policy is not in law, policy will be defined as law or relevant to the interpretation of law for the purposes of the court. It is possible technically to reconcile these statements, but the fact remains that the courts are described in terms that require them to be both subservient to Party leadership and independent. John Gillespie insightfully reconciles these principles by explaining that courts remain under the Party’s leadership, but must be free from Party interference (Gillespie 2002: 26). As Gillespie notes, the line between these remains unclear. Resolution No. 8 captures the ongoing tension for court-based law reform in Vietnam.

The following are the core features of the court reform package affecting people’s (but not military) courts introduced in the Law on the Organisation of Peoples Courts in April 2002:

  1. Judges must have a bachelor of law degree, have attended adjudication training and must also have legal experience. (Article 37)
  2. With the exception of the Chief Justice and judges of the Supreme People’s Court (SPC), all judicial appointments, removals and dismissals to provincial and district courts will be made by the Chief Justice of the SPC on the advice of especially constituted Judicial Selection Councils. Appointment, removal and dismissal of Chief Justices and Deputy-Chief Justices of provincial and district courts will be by the Chief Justice of the SPC, acting on the advice of the relevant People’s Council (Articles 25 & 40).
  3. There will no longer be a Supreme People’s Court Justice Committee (Article 24)
  4. People’s assessors will be elected by Local People’s Councils on the recommendation of the relevant Fatherland Front organization (Article 41)
  5. People’s Assessors can be dismissed by the Chief Justice of the court to which they have been elected with the agreement of the relevant Fatherland Front committee (Article 41)
  6. The Standing Committee of the National Assembly will determine court budgets acting on the advice of the Chief Justice of the Supreme People’s Court (Article 44)
  7. The number of judges and people’s assessors will be determined by the Standing Committee of the National Assembly on the advice of the Chief Justice (Art. 42(1))
  8. The SPC in conjunction with local people’s councils will be responsible for the management of local people’s courts (Article 17)
  9. The need to develop information technology to assist the courts to do their work is explicitly recognised (Article 46)

The table below sets out how these reforms change the 1993 Law on the Organisation of People’s Courts. It deals only with those changes affecting people’s courts and does not deal with the changes as they affect military courts.[19]